Russell A. Spatz

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What You Need to Know About Filing a Motion to Vacate Judgment and Sentence in Florida

On Behalf of | Apr 6, 2016 | Criminal Charges |

Picture this: you’ve just interviewed for your dream job, and you feel great about it, with the exception of one tiny detail. You’ve got something on your record. The worst part about it is, the thing that’s on your record is an old and minor conviction.

Believe it or not, in one form or another, this isn’t a rare scenario. Sometimes the record is incorrect while in other cases the individual simply wishes to contest a conviction. Inquiries frequently come into our office from people who have lost employment opportunities or are otherwise denied privileges due to a prior record. The question they all have is this: Is there anything I can do if my background check comes back with a criminal record and I’m denied a job?

The First Step is to Find Out The Nature of the “Black Mark”

The first step is to find out exactly the nature of the “black mark” lodged against the individual is. Was there actually a conviction? A withhold of adjudication? Or was the charge disposed of in some other manner (dismissal or Nolle Prosse). If in fact there was a conviction, Florida law allows contestation and review of said conviction through a Motion to Vacate under 3.850 Florida Rules of Criminal Procedure.

Motion to Vacate under 3.850 Florida Rules of Criminal Procedure

Before filing, these motions generally should be filed within two years of either the conviction or the appellate courts final rendition of an opinion which finalizes the conviction. There are exceptions in this rule which may involve, among other things, newly discovered evidence, a fundamental constitutional right established after the fact, and held to apply retroactively, as well as other grounds.

Many times, matters that may be asserted deal with ineffective assistance of trial counsel, a sentence that exceeds the maximum authority by law (which may be filed at any time). A motion to vacate a sentence that exceeds the limits provided by the law may be filed at any time. If an individual wishes to investigate the viability of filing such a motion, it is imperative he or she does so as soon as possible as time is of the essence. Additionally, in investigating the merits of such a motion, an attorney may need to have a plea colloquially transcribed or gain access to the court file to obtain certified copies. If the client waits too long, said documentation may not be available.

The Second Step is to Gather up Any and All Documentation Available

At the Spatz Law Firm we take these matters seriously. The second step (after the initial client interview) is to gather up any and all documentation available so that a review of the records can be accomplished by a trained eye. It is important that someone trained in these matters reviews the records, since often times the client is not aware of the grounds they may have to substantiate such a motion.

Once a thorough review of these records and transcripts is accomplished, an intelligent decision may be made by the client as to whether they wish to pursue such a motion. If post-conviction relief is granted and the conviction vacated, and the case is either not pursued or results in a dismissal or Not Guilty, the client may be entitled to either expunge or seal his/her record.

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